Judge Vance Day should be ousted from job, in part for refusing to marry gays, commission says

A state commission recommended Monday that Marion County Circuit Judge Vance Day be ousted from his job for his refusal to marry same-sex couples and other ethical violations.

The Oregon Commission on Judicial Fitness and Disability made its rare recommendation to the Oregon Supreme Court in a 48-page report. The high court ultimately will decide whether to remove Day from the bench.

The nine-member commission -- which held a two-week hearing in November into Day's conduct -- concluded that he has undermined public trust in the judiciary and that he should no longer be allowed to work as a judge.

"Judge Day shows no outward sign of comprehending the extent or nature of his ethical violations," the commission wrote. "His misconduct is of such a nature as to impugn his honesty and integrity."

Day released a statement through a spokesman, saying he and his legal team are "disappointed" with the commission's findings.

"A quick review of the decision indicates that the Commission's 'finding of facts' are at odds with evidence presented at the hearing, and some have no evidentiary support at all," the statement read. "The opinion is especially troubling because it disregards Judge Day's First Amendment rights to freedom of religion, speech and association. He will vigorously defend these rights, and his innocence of the remaining charges, before the Oregon Supreme Court."

Among the commission's findings:

Day instructed his staff members to embark on a "discriminatory plan" by telling people that they would have to check the judge's schedule before he could perform a wedding, the commission said. The judge then told his staff to investigate if the couples were gay.

If so, staff members were to tell the couple that the judge was "unavailable" on the requested day and to call another judge, the commission said.

"Judge Day is a Christian whose firmly held religious beliefs include defining marriage as only between a man and a woman," the commission said in its decision.

The commission noted that those beliefs clash with U.S. District Judge Michael McShane's ruling in May 2014 overturning Oregon's ban on same-sex marriage.

Marion County Circuit Judge Cheryl Pellegrini told the commission that when she was appointed to the bench in 2014, Day invited her out to breakfast and told her he was opposed to her appointment because of her sexual orientation as a lesbian. Day, however, said he told Pellegrini that he was opposed because she had been a government lawyer. The commission found Pellegrini's account "to be more credible."

Beyond the issue of marriage or sexual orientation, the commission found that Day committed many other ethical missteps, including some "amounting to criminal behavior."

The commission said that Day intentionally deceived media and the public by saying he was being unfairly attacked by the commission because of his religious beliefs when in reality the commission had been investigating him for other concerns before discovering his refusal to marry same-sex couples.

"His misconduct is not isolated," the commission wrote. "It is frequent and extensive. ...(P)ossibly the most disturbing, Judge Day has engaged in a pattern of dishonesty. Although the goal of much of his disingenuousness appears to be covering up misconduct, some of this conduct seems to have other independent objectives."

The commission found that Day has little insight into "the boundaries required" for being a judge.

For example, the commission wrote that Day included a portrait of Adolf Hitler in a "Hall of Heroes" artwork display he erected in the Marion County Courthouse. When Presiding Judge Jamese Rhoades told him to take it down, he told her, "You don't want to go there because some very influential people in this town want it up," the commission wrote. Rhoades viewed that as "a veiled political threat," the commission said.

The commission found that Day did ultimately take down the portrait, but was reimbursed twice for the $879 that he spent matting it.

Among other problems with boundaries, the commission said that the judge hired defendants he was overseeing on probation to help with home projects for himself and his family.

The commission also said that Day "relentlessly" texted and sent personal photos to a felon who was on probation, even though the felon was trying to avoid a personal relationship with Day. The felon was a Navy Seal, and the commission wrote that Day compelled the man to introduce Day to the his Navy Seal friends and that Day even brought one "noted Navy Seal" to a wedding to "show him off."

What's more, the commission found that after Day's son was hurt during a Chemeketa Community College soccer game in 2012, Day shoved "his judicial business card at a soccer referee" to intimidate the referee because Day was mad at him for a call he'd made before his son's injury.

Day also allowed a felon to handle a gun -- despite knowing that was illegal -- so the man could help Day's son prepare for his entry into the military, the commission said.

Day is in his mid-50s, married and a father of three. He has been a licensed attorney in Oregon since 1991. He was appointed to be a Marion County Circuit judge in 2011 and elected in 2012.